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Are Phone Bills Really Sacrosanct?

A frequent contributor to the comment section, Herb Van Fleet, wrote in to express his opinion on my piece on President Obama’s NSA reform speech last week. Herb’s objections to what the NSA is doing are shared by many folks on the right and on the left. This is one issue that cuts across party lines. Here is my response:

Herb,

Perhaps you have access to better information than I have, but I wasn’t aware that the government is collecting “emails, text messages, website visits, web search history, skype calls, credit card information, and travel plans” from Americans. Please elaborate or provide evidence for this claim.

I know that the NSA collects such information on “valid foreign intelligence targets,” and it is possible some Americans who communicate with those suspected of being terrorists might get caught up in that collection—even though the NSA reportedly washes all “U.S.-related” messages from that international database. But it is not the practice of the NSA (as far as we know) to collect such things here at home. That is why the President’s speech focused on the phone data. You think he would leave out the other stuff if it were going on domestically? He would have been mercilessly hammered day and night.

As for your Fourth Amendment argument, do you really think the “unreasonable searches and seizures” language applies to phone records—and remember, we are talking about just the records, not the content of the calls—that are collected and initially held by private companies? Sure, now that the thing is out in the open, now that Edward Snowden has told the world, including our Allah-fearing enemies, what is going on, I’m all for having the Supreme Court decide if “unreasonable” applies to what the NSA is doing with its phone data collection program. If the Court finds it unreasonable, though, it would also have to find that a lot of what modern government is doing is similarly unreasonable, like, say, checking my luggage at the airport.

I recently traveled to Arizona on an airplane. I was required to submit to an inspection of my carry-on items. My body was scanned. Once I was safely home, I found in my checked bag a notice from the Transportation Security Administration. The notice said the agency had opened and inspected my bag for “prohibited items.” In fact, in the notice were these words:

If the TSA security was unable to open your bag for inspection because it was locked, the officer may have been forced to break the locks on your bag. TSA sincerely regrets having to do this, however TSA is not liable for damage to your locks resulting from this necessary security precaution.

Did the government violate my right to privacy? When it was rummaging through my socks and skivvies, did it violate my Fourth Amendment rights? It seems to me that such a government action carried out by the TSA is much more egregious than what the NSA is doing with my phone records, which is to say it is storing them on a computer somewhere without looking at them. Yet millions upon millions of us tolerate such action by the TSA at our nation’s airports, and some of us even welcome such action. I know I do. I don’t mind it a bit. I’m not the least worried about it. Why? Because I value—I highly value—having at least some confidence that someone checked to see whether some Allah-loving fanatic, or some other suicide-bombing nut, tried to smuggle something deadly aboard the plane. In other words, I worry much more about my security on the airplane, where I am helpless as can be, than I worry about some TSA employee gazing at my underwear, whether in my bag or on my body.

Let me explain where I would draw the line. I had a laptop in my checked luggage, the same luggage the TSA opened and inspected. If a TSA employee had attempted to turn on my laptop and check its contents, or if the employee had gone through my personal papers in my luggage (I didn’t have any this trip), I would have had a major problem with that. Why? Because such actions are unrelated to what the mission of the TSA is. A search like that would involve going way beyond a legitimate security purpose. Thus, I would also oppose the NSA’s actions if it were collecting the kind of data you suggested it was collecting, not to mention querying it without a court order.

You wrote,

I’m willing to bet that the vast majority of Americans, more that 99%, are NOT spies and have NO intention of blowing stuff up or flying planes into tall buildings. And I resent like hell being put in the same category as a terrorist and then allowing my government to eviscerate one of the most important rights I have — we all have — under the Constitution.

I agree that most of us aren’t spies or terrorists. That is why President Obama rightly said that the NSA is not “examining the phone records of ordinary Americans.” I think it is fair to say that ordinary Americans aren’t plotting to kill innocent people in the name of Allah. But to say that because the NSA is holding your personal phone records in a database somewhere means that the government has eviscerated “one of the most important rights” you have, sounds to me to be a little, well, melodramatic. The government is not looking at most of those records; it certainly is not listening to your phone calls or reading your texts and emails, no matter how interesting they might be. So I am at a loss to figure out how your phone bill records are so sacrosanct. I know mine aren’t.

Maybe the Supreme Court will one day find that what the NSA is doing, collecting and storing but mostly not looking at uncountable numbers of phone records from the various phone companies, is unconstitutional. But we shouldn’t kid ourselves that if it does, if the Court kills the metadata program, we might technically believe ourselves to be more free, but at what future price? You see, most of the objections to the NSA program involve the potential for future abuse, just as the program itself is designed to prevent future attacks. And just as I am willing to trade some minor privacy intrusions at the airport in return for reasonable assurances that some crazed killer won’t blow up my airplane or fly it into the nearest skyscraper, I am also willing to trade the minor privacy intrusion of having my phone records resting on some hard drive in some government-owned building in exchange for reasonable assurances that terrorists will have a tougher time doing today what they did on September 11, 2001.

21 Comments

I am surprised that you are so quick to accept the president’s words about the NSA as truth. Frankly, the president mislead us about all this spying business. I’ll avoid saying he lied, because he clearly only knows what the intelligence community is telling him. A simple Google search would have saved him a lot of embarrassment.

And ALL of it is on Americans, NOT foreigners! Too bad Obama didn’t read that, or been made aware of it, before he made his speech.

As to the FAA and their search of your baggage, remember they are only looking for stuff that could be used for hijacking or blowing up airplanes; like liquids over 6 oz. and smelly shoes. They don’t care what’s ON your laptop, but they do care about might be IN your laptop. In any case, security checks at airports are not “surveillance” in the sense of spying activities carried out by the NSA and other agencies.

As to the collection of personal information by the private sector – Amazon, Facebook, Google, etc – I have legal recourse and/or protection in the case of abuse. But more importantly, none of those entities have a police force that can come to my house, arrest me, and, thanks to the Patriot Act and the National Defense Reauthorization Act, detain me indefinitely without any charges being made and without access to an attorney.

So, yes, I am very concerned by the abuse of my personal information held by the government. I have no remedy for that, nor do you, nor do any U.S. citizens.

As to the 4th amendment itself, we’ve now had two federal courts rule, each with opposite conclusions. U.S. District Court Judge Richard Leon has found that the NSA Metadata program appears to violate the Fourth Amendment. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment,” the judge writes. But U.S. District Judge William Pauley said the NSA’s bulk collection of phone records was legal. Judge Pauley opined, “The right to be free from searches is fundamental but not absolute. Whether the fourth amendment protects bulk telephony metadata is ultimately a question of reasonableness.” The issue will no doubt get to SCOTUS in due course.

Finally, yes, I do feel strongly about my rights under the Constitution, especially the 4th amendment. I won’t expand on that now because, given the above, you already have enough to digest.

Herb

p.s., I would appreciate it if you would conduct a little due diligence regarding my comments before responding. You should know by now that I am an avid researcher. As demonstrated above, I usually have substantial support for any claims I make. And my opinions are informed by that research as well. Just saying . . .

You might be surprised that I took the President at his word (which I am inclined to do until evidence points me the other way), but I am shocked, and I mean shocked, that you have cited as “evidence” a website that is a parody. It’s true. The site is a parody site. Check it out. It is not an official government site. And it is operated by a guy who is super-worried about “privacy issues related to our expanding use of technology.” But even he writes,

I don’t believe we are anywhere near having a ‘Domestic Surveillance Directorate’ yet, but if we aren’t careful. small iterative steps could eventually make that a reality.

In short, this site is designed to make us afraid, very afraid, of what our government is capable of. And I don’t have a problem with that, so long as the conclusions reached are understood to be those of someone who is merely anticipating the worst the government is capable of doing and are not factual (although some of the information on the site is factual; which is how parodies get us).

And I am amazed that you would think the President wouldn’t be told, or that he would go out and make a fool of himself, if such things as you listed were really going on. Come on, Herb.

As for the baggage check, of course airport searches are not like spying. They’re absolutely out in the open. And that is my point. At airports we have the courts allowing people to scan you, x-ray your stuff, open your bags, and life goes on. But the minute some Americans find out their phone bill records are on a government hard drive somewhere, they come unglued and start to believe all sorts of things that aren’t true, things like you cited as fact but aren’t.

I won’t go into your Fourth Amendment argument again, as what I have said up to this point may change your response. At least I hope it does, my friend.

Finally, the Pro Publica piece (I like this source, by the way; use it often) does accuse the president of “misleading assertions.” I can’t think of a single speech given by a single politician that doesn’t have such assertions in it that someone could call misleading. It’s all dependent on how you interpret what is being said.

But here is what I want you to think about. Let’s take Pro Publica’s first claim, the one about “there have been no abuses.” You know what is cited as contradicting that assertion? The Foreign Intelligence Surveillance Court! Yes, FISA “has reprimanded the NSA for abuses…” What’s significant about that is that those who are worried to death about the NSA not having any oversight are citing instances of where it is being watched by FISA!

The next assertion challenged is the effectiveness claim of the program. Pro Publica merely suggests “The record is far less clear.” Again, it is a matter of interpretation, and we don’t have all the super-secret stuff to know much beyond what we read in the papers.

Next up is the “domestic spying” accusation, citing the fact that the NSA did gather some relatively small number of domestic emails without a warrant (the gathering was related to, again, foreign communications Americans might be having with suspects overseas). And guess who slapped down the NSA’s mishandling of these emails? Yes! FISA! That’s pretty good for a court that isn’t capable of doing proper oversight, according to some folks. FISA’s Judge Bates has raised some genuine concerns, by the way, about the way the NSA does its thing, which is evidence that the NSA isn’t operating like an out-of-control agency without at least someone keeping an eye on it.

The last Pro Publica concern has to do with Edward Snowden and Obama’s claim that because he signed an executive order giving “whistleblower protection to the intelligence community,” that Snowden had “other avenues available” than giving secrets to our enemies and dodging justice in that bastion of freedom, Russia. Since you already know my thoughts about Snowden, that if he wants to be a whistle-blowing hero he should do what heroes do and come forth and face justice, I won’t even bother to worry about whether he could have taken advantage of Obama’s executive order.

Sorry,my friend. I didn’t see your final “p.s.” paragraph when I responded the first time. If I had, my response would not have been so gentle. I guess I will suggest to you that you should “conduct a little due diligence” before you respond, because you should know by now that I don’t make claims that I can’t support with at least some evidence, although I do make mistakes in reasoning sometimes, like jumping to conclusions. But I would certainly make sure a website I am using as a refutation of your argument is not a parody. Just saying…

King Beauregard

I seem to recall Herb also turned to some questionable sources to prove that George Zimmerman was protecting the neighborhood from the Lean-driven rampage of the savage proto-human called “Trayvon Martin”. Well okay, there wasn’t any Lean in him, but he had just bought snacks, one of which could be an ingredient in Lean. (The watermelon drink was the wrong ingredient for Lean, the recipe calls for Sprite, which was almost certainly available at the store Trayvon was just leaving. Still, Trayvon did have Skittles, so why let facts get in the way of a conclusion?)

Hey, I just Googled and discovered that Justin Bieber — the number one White Kid in North America — is a fan of Lean. Time to go open season on white kids too!

You know what is sad and disturbing about all that Lean business? That it is still to this day perpetuated by right-wing sites like World Net Daily. There isn’t the slightest bit of evidence to support the claim, yet WND and other bullshit reactionaries developed the idea that Martin had liver problems, he was so messed up on the stuff. It is really unbelievable. And I don’t remember Herb even mentioning Lean during all the discussion we had about Martin-Zimmerman; if he did, I missed it or have put it out of my mind. And if he did, that may be worse than than falling for a fake NSA site. I do remember a discussion with someone about the very tiny amount of THC he had in his system, which had absolutely nothing to do with what happened for the simple reason that there wasn’t enough to produce intoxication, but the utter quasi-racist nonsense surrounding that case was so disgusting to me that I had trouble dealing with it and was very disappointed in a lot of things that were written by pro-Zimmerman folks in this comment section.

First, that was hilarious. I started having some small amount of sympathy for Zimmerman about half way through!

Second, about those Trayvon Martin comments. Thanks for hunting them down. Funny, I missed that whole string starting on July 25. I don’t know what was going on, but I’m a little disappointed in myself; I think after Herb earlier urged me to see “Nonny Moose’s” comments, I must have tuned out after my July 22 response. Nonny Moose is a reprehensible and anonymous commenter who does the nasty on another local blog, and an appeal to him may have been the end of the argument as far as I was concerned. In any case, I had never read them before today. Wow. It was worse than I remembered. Not only the Robitussin nonsense, but that whole “you owe Dr. King an apology” ridiculousness.

Geeze am I glad that string is finished, although I thought your responses throughout the whole thing were great.

King Beauregard

So you still think that “a black kid” and “a rotund elderly white man with a full beard in a red suit, with a twinkle in his eye and an enormous bag full of toys” are comparably practical descriptions of suspects. That’s some pretty sharp thinking you put together for your “expanded comments”.

I’d let it go, but I am reminded that you feel it’s up to blacks to police themselves, therefore it must be up to us whites to police ourselves. And I realize you don’t think you’re a racist, but if the shoe fits. If you don’t like being called a racist, it’s not up to me to stop calling you one; it’s up to you to extract your racist head from your racist backside.

King Beauregard

Thanks! I had “fun” on that thread (where by “fun” I mean it sucks that it’s the sort of thing that has to be debated at all). Can I give you another video?

In this one, an American schoolteacher from Iowa leads some Brits through a workshop where they get to get to experience racism firsthand, and see what they can learn from it. There’s a special surprise from the not-at-all racist schoolteacher at 28:28, where she asks a question that sure brought back memories.

Well, you are right on the faux “NSA” website. The “.gov-1″ should have given it away. And, yes, I should have done my own “due diligence” before using the site. It’s what I get for being in too much of a hurry to make my response.

In any case, I apologize to you and your readers for the misinformation.

I would note however that almost all of the personal data on that list are either on hand already, or can be retrieved, by any number of agencies responsible for national security at the federal, state and local levels. For example, you may recall that the FISA court has given “National Security Letters” to FBI giving it the power to compel disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others; all without a warrant. Such letters were also used to get phone records from news agencies like AP and Fox News.

Point being that it’s not just the NSA that should concern us. As I said in my initial comment on this matter, “. . . it’s not just the NSA. Remember we also have the CIA, the FBI, the Department of Homeland Security, the Treasury Department, and the intelligence divisions within the DOD. How will the president protect us from the overreach of these spy agencies?”

Now, about the president making a fool out of himself, I give you his statement in re the ACA that “you are free to choose your own doctor,” and rest my case.

But back to the airport, remember you posted a notice left in your baggage, which was not inspected in front of you, by the FAA. No doubt they are looking for essentially the same things that might pose a threat to the flight. Although, admittedly, I don’t know what they would do if they found plans for making bombs or a one way ticket to Tora Bora.

But you still have the option to just skip the invasive airport security searches. Don’t fly! In contrast, the NSA doesn’t give you that option in it’s “searches.” You’re not free to decline.

As to ProPublica’s “Four Questionable Claims” article, here are my thoughts. First, Obama incorrectly stated (December 20) that “There had not been evidence and there continues not to be evidence that the particular program [NSA] had been abused in how it was used.” That’s simply not true. As you correctly point out, the FISA court did find abuses on several occasions. All the president needed to say was something to the effect that “a few abuses by the NSA have been identified and corrected.” My point being that it doesn’t matter that the FISA court was involved, what matters is that it is a factual statement to say that NSA has at times abused its authority.

The second “questionable claim” has to do with Obama saying, without qualification, that the NSA is responsible for averting 50, count ‘em 50 terrorists threats. The president’s own review panel could only find one, and even that one may have been ancillary to other sources. The claim that the program “saved lives” is totally unfounded, if not completely untrue.

On the third issue about the NSA not spying on U.S. citizens, my response is the same as on the first questionable claim. That is, the NSA has spied on Americans, That’s the whole reason for the “additional safeguards.”

Finally, the only thing about Snowden that I care about is that, if he can get into secret records, so can others. Sorry, but I don’t buy the “Trust Me” defense offered by Obama and his surveillance agencies.

In short, my opinion regarding the nation’s surveillance of private citizens outside the scope of the 4th amendment still stands. The rest I will leave in the capable hands of Jon Stewart and the brilliant writers for The Daily Show:

I don’t think we can proceed if we can’t at least agree that the FBI, at least as it is operated today, and the Treasury Department are not “spy agencies.” And the CIA isn’t supposed to be doing any domestic spying. It’s mission is foreign intelligence. So, your expansion of the problem does not advance the argument, except that I will grant you that the Department of Homeland Security has issues that need to be fixed.

So, leaving aside your gratuitous swipe at the President’s statement about doctors under the ACA, I will deal with something else you said:

But you still have the option to just skip the invasive airport security searches. Don’t fly! In contrast, the NSA doesn’t give you that option in it’s “searches.” You’re not free to decline.

What? Of course you are. You can use the same logic and not use your telephone, Herb. Then guess what? The NSA won’t have any telephone records to gather (they don’t really gather all of them anyway, perhaps less than 75%). I think you inadvertently made my point here.

Finally, I only have time to respond to one or two other things you brought up:

My point being that it doesn’t matter that the FISA court was involved, what matters is that it is a factual statement to say that NSA has at times abused its authority.

I won’t even argue with you that you are misusing the term “abused” here. But I will reiterate what I said: the FISA court (and Congress) is watching what is going on. At some point, if we are to have a national security agency at all, you have to trust that people are doing their jobs. I will add comments by federal district judge William Pauley, who recently determined (ACLU v. Clapper) the program was constitutional:

There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.

Now, either the ACLU didn’t make a very good case, or what Judge Pauley says is true.

Finally, you wrote:

…my opinion regarding the nation’s surveillance of private citizens outside the scope of the 4th amendment still stands.

Believe me, I didn’t really expect I would change your mind, even though your initial assertion was that the privacy intrusion is far more extensive than it actually is. And we shall someday see if you are right. But as I told another critic, it’s not likely that the Supremes are going to overturn their 1979 precedent-setting case, although with this Court, anything is possible.

Since these two sources support my position on the NSA spying program, and since I have nothing to add, I just leave it there.

Now, about the other agencies that conduct DOMESTIC surveillance, you can find a list on the ACLU’s website along with a brief description of each of the programs. You will note that the list does, in fact, include the CIA and the FBI. While you may not want to refer to them as spy agencies, well, if it quacks like a duck and swims like a duck . . . Anyway, there were several others on the list I never heard of. See “The ACLU Campaign to Stop Illegal Spying https://www.aclu.org/spy-files

As to your comment referring to my point about airport security checks, you say, “You can use the same logic and not use your telephone, Herb.” This is a red herring argument, Duane. Although, I will admit you’re being pretty creative here.

At the airport I can refuse because I can see what they are doing right in front of me and I know why. It is the exact opposite with telephone usage. NSA doesn’t get data directly from me, they get it from the company that provides me with phone service. That’s why they call it “bulk” data. Ands the phone companies ain’t happy about it either.

If the government wants to collect telephone information about me, directly or indirectly, they first have to get a warrant that specifically identifies my telephone. And it doesn’t make any difference if the information collected in minimal, a warrant is still needed to satisfy my rights under the 4th amendment. So say many courts over the years. And that is why the NSA program has found itself in hot water as a matter of policy by two independent review groups and may be even be illegal according to one judge.

Speaking of judges, you have relied on Pauley as support for your position here. So, I invite you, in the spirit of fairness, to check out judge Leon’s opinion that I referred to above.

In any case (pun intended), what we’ve been discussing here is the very specific program of telephonic megadata collection by the NSA. So far, the program has proved useless in helping to identify possible terrorist threats. It has clearly been a waste of time and money and the country would be better off if the whole program was canned.

But I’m concerned about the broader issue of our government spying on us by all the agencies tasked with doing so. (See ACLU’s list.) We had the FBI tapping the phones of the AP and Fox News and perhaps other news organizations. That’s a direct violation of the 1st amendment right of a free press.

Business communications have also been infringed by government spies, both here and with our trading partners overseas. As a result, some estimate that that could produce a loss to U.S. companies of some $160 billion a year in trade, and who knows how many jobs.

I could go on and on, but you get the point. I’m beginning to get the feeling that I’m living in 1937 Germany; an Orwellian dystopia with Big Brother everywhere. Nothing worse that living in a country filled with paranoia and an unlimited access to guns.

Herb

p.s. If you’re interested, I sent an Op-Ed piece to the Globe on this subject. I think it will come out on Sunday the 26th.

I hope it isn’t lost on you that the report you cited, from the PCLOB, was generated by an executive branch entity that is, by statute, required,

to advise the President and elements of the executive branch to ensure that privacy and civil liberties are appropriately considered in the development and implementation of legislation and policies and to provide advice on proposals to retain or enhance a particular power…

That’s a strange thing isn’t it? I mean, it is strange if you think the government is out of control, in terms of spying on Americans. Congress asked the PCLOB to “to investigate the two NSA programs and to provide an unclassified report ‘so that the public and the Congress can have a long overdue debate’ about the privacy issues raised.” Hmm. That’s some Big Brother, brother. I don’t remember Orwell inserting such an independent, investigative-oversight body into 1984. But it has been a long time since I read it.

In any case, although the PCLOB finds the metadata collection program statutorily suspect (“lacks a viable legal foundation”), it does not conclude it is unconstitutional. Instead,

the Board urges as a policy matter that the government consider how to preserve underlying constitutional guarantees in the face of modern communications technology and surveillance capabilities.

The Board did find that the program isn’t as valuable as some have claimed, but reading the report makes me think that determining that value is highly subjective, considering the predisposition to believe the following:

The Board also has analyzed the Section 215 program’s implications for privacy and civil liberties and has concluded that they are serious. Because telephone calling records can reveal intimate details about a person’s life, particularly when aggregated with other information and subjected to sophisticated computer analysis, the government’s collection of a person’s entire telephone calling history has a significant and detrimental effect on individual privacy. The circumstances of a particular call can be highly suggestive of its content, such that the mere record of a call potentially offers a window into the caller’s private affairs. Moreover, when the government collects all of a person’s telephone records, storing them for five years in a government database that is subject to high-speed digital searching and analysis, the privacy implications go far beyond what can be revealed by the metadata of a single telephone call.

When it comes down to it, just as I suggested previously, the primary objection to the program is what the Board termed “mission creep.” I.e., the potential for abuse, not real-time abuse. And I want to reiterate their finding on that matter of non-abuse, which you and others don’t believe (you have claimed the program is spying on Americans here at home, for instance):

To be clear, the Board has seen no evidence suggesting that anything of the sort is occurring at the NSA and the agency’s incidents of non-compliance with the rules approved by the FISC have generally involved unintentional misuse.

You see? There is no real abuse going on. It is the potential for abuse, which I acknowledge. The question in the face of such potential abuse is: What safeguards are in place to prevent it? The question is not, “let’s get rid of it because someone may misuse it.” If it isn’t possible to put in place systems to adequately monitor what is going on, I am all for scrapping it. I wouldn’t have a problem with doing that. But as far as I can see, there are systems in place to adequately monitor what is going on and the White House just announced it has made a deal with tech companies that will allow greater transparency regarding the collection of phone data.

By the way, although I think the report is generally well thought out, I think this reasoning is, well, to put it technically, horseshit:

Moreover, the bulk collection of telephone records can be expected to have a chilling effect on the free exercise of speech and association, because individuals and groups engaged in sensitive or controversial work have less reason to trust in the confidentiality of their relationships as revealed by their calling patterns. Inability to expect privacy vis-à-vis the government in one’s telephone communications means that people engaged in wholly lawful activities — but who for various reasons justifiably do not wish the government to know about their communications — must either forgo such activities, reduce their frequency, or take costly measures to hide them from government surveillance. The telephone records program thus hinders the ability of advocacy organizations to communicate confidentially with members, donors, legislators, whistleblowers, members of the public, and others. For similar reasons, awareness that a record of all telephone calls is stored in a government database may have debilitating consequences for communication between journalists and sources.

The above could only be a worry if people misread the previous conclusions of the Board—that is, if people think there is no oversight and that there is real abuse going on, as opposed to potential abuse. Anyone who thinks that is already predisposed to believe it despite the evidence or hasn’t looked at the evidence.

Finally, before this response gets too long (too late!), I want to reference this statement in the report:

Transparency is one of the foundations of democratic governance.

Sure, that’s exactly right. Transparency is important. It is foundational. But who can argue against the notion that transparency in our technological age, where Allah-inspired enemies can coordinate via electronic devices and can get on an airplane and crash it into buildings (or use some other Allah-inspired killing mechanism), means something different than it did in, say, 1787, when it took weeks to transmit information over long distances?

I agree with the Board that the government should promote “greater transparency” (which the Administration is beginning to do, as I noted above), but just what that might entail is largely dependent on information neither you nor I are privy to or should be privy to. And that is where I am inclined to insist that adequate oversight is in place and then allow that the meaning of “greater transparency” is in the hands of those who have oversight responsibility, not those on the outside looking in. As I said before, if we are to have a national security system that works to defend the country, we have to have some trust in those who are running it and, more important, in those who are watching those who are running it.

Jane Reaction

Of course privacy is sacrosanct. Without it, all other rights become baseless or untenable. When the government collects and stores every American’s phone call data, it is engaging in a textbook example of an ‘unreasonable search’ which violates the Constitution. Do you not understand that?

Obama gave the spooks exactly what they were looking for: There is a solid future ahead for meta-data collection, and the majority of the spy framework was just pronounced legitimate.

Guardian journalist Spencer Ackerman called it “a gift for the National Security Agency.”

The issue wasn’t whether “privacy” is sacrosanct. It is whether your phone records are. That is very different in my view.

As for whether metadata collection is a Fourth Amendment violation, that remains to be seen. But I don’t agree that it is a “textbook example” of a violation for the simple reason that two different federal judges have come to two totally different conclusions on the matter.

A George W. Bush-appointed judge has found the data collection an “indiscriminate” and “arbitrary invasion.” Okay. But a Bill Clinton-appointed judge found it to be “lawful.” He said, “The right to be free from searches and seizures is fundamental, but not absolute.” Now what? On to the Supremes.

A 1979 ruling (Smith v. Maryland) by the Supreme Court found that no one has a “legitimate expectation of privacy” in terms of telephone records because there is “no legitimate expectation of privacy in information provided to third parties,” as Judge William Pauley (the Clinton-appointed judge) pointed out. Those records are the property of the telephone company. If the Supreme Court strikes down the NSA program, it will have to reverse its opinion in the 1979 case. I find that highly unlikely, although it is possible.

Judge Pauley also pointed out that “Fifteen different FISC [Foreign Intelligence Surveillance Court] judges have found the metadata collection program lawful a total of thirty-five times since May 2006.” And he concluded that whether the metadata program is protected by the Fourth Amendment “is ultimately a question of reasonableness.” He noted that,

Every day, people voluntarily surrender personal and seemingly-private information to trans-national corporations, which exploit that data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.

And, in case anyone thinks that the program has been abused, he addressed that, too:

There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped.

He also pointed out that not only do the several FISC judges monitor the program, it is also subject to executive and congressional oversight.

So, while I understand why people fear the potential for abuse, my view is that given what we have seen so far, and given the layers of oversight (which, by the way, can be further improved), I shouldn’t worry all that much, or consider it a huge violation of my privacy, that the government has my phone call dates and times and duration on a computer hard drive somewhere.

Sedate Me

Judge Pauley also pointed out that “Fifteen different FISC [Foreign Intelligence Surveillance Court] judges have found the metadata collection program lawful a total of thirty-five times since May 2006.”

And this just in…15 different Teabaggers in Congress believe that the Teabaggers in Congress are doing a great job protecting America from the Muslim terrorist in the White House!

FAR more interesting would be what these rubber stampers have said “no” to, if anything at all. Of course, if they were to ever say “no” (at least with any frequency) we’d probably see a repeat of the Bush Era. That is to say, just doing it without asking. They’re argument was “Why waste time asking when you already know the answer and you’re going to do it either way?”

I mean, just look at the severe punishment Bush Co. got for end-running what passes for due process. With all the time they’re serving for their crimes, nobody would EVER dream of doing that again! Right?

A 1979 ruling by the Supreme Court found that no one has a “legitimate expectation of privacy” in terms of telephone records because there is “no legitimate expectation of privacy in information provided to third parties,”

Which is completely wrong, especially for (pre-Internet, pre-Reality TV) 1979. Most folks then would have hesitated before clicking “yes” to the 157 page Terms Of Service Agreement that declares their 1st born property of Satan in order to play Asteroids.

That ruling seems to be another bullshit ruling that just opened the door, not only for this specific violation of privacy, but for corporate for-profit spying in general. No doubt, that ruling helped grow the lucrative industry of buying/selling/trading whatever information they can possibly get on you (accurate or not) and storing it for forever on easily hacked servers by 4th party folks with 5th column agendas.

It’s just like that bullshit ruling that allowed cops to rifle through garbage cans without warrants. Ever since that “no reasonable expectation of privacy” ruling, I haven’t been able to get a decent night’s sleep on garbage pickup night. Human raccoons spend all night rifling through every garbage can on my street looking for recyclable material and/or information that can be used for identity theft…and nobody can stop them.

Does anybody have any “reasonable expectation of privacy” anymore? When was the last time the courts ruled there WAS a reasonable expectation of privacy regarding anything? Is no behaviour beyond the line? The invasions are getting more intense and the justifications are getting more tenuous.

Since my toilet uses city water and flushes into public sewers, do I no longer have any “reasonable expectation of privacy” regarding my discarded urine and bowel movements? I mean, surely the lack enzymes related to alcohol or pork consumption can help to identify me as a potential terrorist, or a sympathizer, right? The safety of America depends on secretly capturing my Number 1 & 2s!

I’m glad you differentiated between what is going on now and “the Bush Era,” where administration lawyers simply redefined or reinterpreted the law to allow for, say, the torture of prisoners.

Your argument that because no Bushies were prosecuted, there then isn’t much of a deterrent effect on future behavior, is a good one. Many on the left have made that case and although it is logically a good case to make (not to mention there was a good legal case to make), practically speaking it would have been quite problematic politically. I’m guessing the main reason the Obama administration (Obama himself) didn’t want to take it on is because he knew it would be a mess and get in the way of doing other, more important, things, like trying to revive the economy and pass health reform. Just imagine how much time and energy would have spent in not only prosecuting former officials of another political party, but in defending those prosecutions in the face of a fierce partisan backlash in Congress and across the country. For God’s sake, the right-wing went nuts in 2009 and 2010 as it was. Who knows what would have happened if senior officials in the Bush White House, not to mention Bush himself, would have faced criminal trials.

Finally, in the middle of the overblown worries about “human raccoons” and shit cops intercepting your bowel movements downstream, you do make a valid point:

Does anybody have any “reasonable expectation of privacy” anymore? When was the last time the courts ruled there WAS a reasonable expectation of privacy regarding anything? Is no behaviour beyond the line? The invasions are getting more intense and the justifications are getting more tenuous.

My response would be that the information revolution has changed our expectation of privacy in substantial and likely irreversible ways. People voluntarily give up all kinds of personal information on the Internet through social networking sites and so on. Frankly, I am shocked by how much information people are willing to share with others. I know someone who lives down my street who routinely posts on Facebook when she will be out of town. I find that strange, not to mention dumb and possibly dangerous. Then you have businesses exploiting your searches and purchases and keeping all sorts of data on what you are doing. Then you have the government interested in terrorism and how to stop it, and in this day and age one way to try to do that is to trace connections through things like phone traffic.

Those are big changes in our way of life and the amount of privacy we expect. And to tell you the truth, I am less worried about what the government will do with my phone bill than I am with what corporate America will do with my likes and dislikes communicated through my use of the Internet. At least there is someone, no matter what you think of the quality of their oversight, who is supposed to be watching the NSA. Who is watching Google?

ansonburlingame

An interesting thread herein for sure and I am pleased to see Duane defending what is essentially my position on this issue of NSA collection of records of phone calls but not the content of such calls.

What exactly does the NSA find out about ME in this program? Not much that I can tell. They know only that my cell phone was used (at a given time and maybe place) to call another phone number. I suppose the duration of the call in logged as well. I doubt they even know that I own that particularl cell phone unless further investigation authorized by a court is taken. As I understand the issue, that is essentially my contribution to the mega-data base, again unless more intrusive investigation under court orders are taken.

As a normal citizen in the modern world I contribute to other mega-data bases maintained by others. If I take a trip and use my credit card or write checks, such travel can be reviewed in its entirely in terms of distance, time, location to which I travelled, etc. Law enforcement can, with court supervision, collect all that mega-data if they are concerned with where I might travel.

I can easily avoid all that exposure of my “private” information. I can only use cash, not use electronic communications, store all my information on small flash drives and wipe my hard drive on my computer clean after copying to a flash drive, etc. I can be as private as I choose to become but make an effort to do so, in the extreme I suppose.

One part of Duane’s defense of Presidential actions in this case I do take exception however. He looks to SCOTUS to be the final arbiter as to whether or not the NSA collection program is “unreasonable”. I submit that is one of the reasons we get so wrapped up in criticism of SCOTUS. Congress is tasked to uphold the Constituion and that body should be able to read and comply with the Constituion just as easily as nine judges. So can the President and his staff before signing legislation, apply a test for constitutionality on every law he approves.

The NSA is NOT entering one’s home or place of business, rooting around in private files to find “dirt”, etc. NSA is only monitoring the “public domain” the ether if you will, seeking information across the electromagnetic spectrum to protect and defend America. If I choose to stand on a soap box and speak, I am providing information to the public domain as well. If someone later on wants to use that information against me, well I gave it to them did I not?

To me, given the threats against America in this modern age, is not “unreasonable” to listen to the electronic spectrum, very much a public domain, and use some mega-data to protect America against those that would do us all grave harm. I can then vote for politicians that allow such monitoring and thus ultimately it becomes a matter of politics in a democracy.

It is rare that I defend Obama in this blog but I do so in this case. He is walking a political tight rope, not a legal one in my view. He is taking heat from both the right and left, mostly the extremes of each side. I am in the middle on this one and believe he is balancing such interests and making a good call in such an attempt. So I support Duane’s far more detailed points and research.

I would add that it is useless to argue with such a claim as “privacy is sacrosanct” made by the erstwhile lefty, Jane Reaction. All Americans have the right to keep their views and opinions as private as they choose to keep such things. But once anyone is told such information, well it is no longer private because YOU told someone what you thought and intended to do or not do. Any lawyer will tell any defendant to not say anything to anyone without legal representation. Good advice. Follow it and you will always remain very private in your thoughts and intended actions. Thus your privacy remain sacrosanct until you choose to let the cat out of the bag.

You have to know that I have to double-check my conclusions when they correspond with yours, right? We don’t often agree on much and when we do I can’t help but wonder where I went wrong in my reasoning, and I suspect you wonder the same thing. Except in this case, you are the one who has finally got something right…and it is about time.

You do disagree, though, with my looking “to SCOTUS to be the final arbiter as to whether or not the NSA coillection program is ‘unreasonable.'” I suggest you take it up with a) the Founders, or b) John Marshall. The Supreme Court happens to be the final arbiter whether you or I like it or not. And the case is headed in their direction.

Finally, I commend you for your “I defend Obama” courage. I know applying “courage” to a simple act of agreeing with the Scary Negro in the White’s House is a bit of hyperbole, but so rarely does anyone on the right say such things out loud that I think the term is only slightly off-key.

First, I think you are getting a little confused here. You are, in effect, defending the NSA telephone metadata collection system. At least all your responses seem to be specific to that particular program. I have addressed it too and tried to make it clear when I was talking about that program and when I was talking about other surveillance programs by other government agencies (there are 17 a the federal level alone.) Point being that you have not responded to anything other than the NSA. That’s why I referred you to the ACLU site.

You say that “. . . it is strange if you think the government is out of control . . . “ It would be strange had I said it, but I didn’t. “Out of control” is your interpretation. Although, see below.

Germany’s Der Spiegel has reported (Dec. 31, 2013) that the NSA’s Tailored Access Operations unit (TAO) has a 50 page catalog of spying equipment for use by NSA employees. The catalog is supposed to be classified, but was leaked somehow. The list is quite impressive. You can see part of it at http://en.wikipedia.org/wiki/NSA_ANT_catalog

Now, I am not claiming that any of the items in the catalog are in use or not, or, if they are, whether or not they are used to spy on American citizens. But just reading the list of these gadgets and what they can supposedly do, I think you’ll agree, gives new meaning to term “surveillance.”

You are comfortable with the checks and balances in place, or coming into place soon, regarding the NSA’s telephony metadata collection and storage, which is just one part of it’s PRISM program. I suppose you also mean it to include text messages, emails, cell phone data, web usage and other related communications.

But I don’t trust the government, especially at the federal level. Considering that James Clapper, Director of National Intelligence, lied to Congress and has suffered no consequence for it, ought to give one pause. Hmmm, I wonder if he or any of the NSA officials lied to the FISA Court? We’ll never know. So I think it’s a little naïve of you to put your faith in those who have a vested interest in keeping secret programs going. You can’t have transparency and secrets at the same time.

I also don’t think it’s unreasonable to invoke Orwell’s 1984, given the totality of government surveillance at all levels. When you can be spied on by your microwave, I think every American out to be outraged. Frankly, I’m a little surprised you’re not.

You conclude by saying, “. . . if we are to have a national security system that works to defend the country, we have to have some trust in those who are running it and, more important, in those who are watching those who are running it.” Maybe so, but we don’t have a “ national security system that works.” So say all who have looked into the matter in detail. Just ask the victims of the Boston Marathon bombing how well the system works.

Yes, this will go to SCOTUS. Now, there’s some good oversight for you. These guys and gals think corporations are people and that the 2nd Amendment is sacrosanct, among other stupid stuff. My guess is that after they decide this case, you probably ought to be suspicious of your toaster.

I gone too long, but I want to close with this:

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.” – Thomas Jefferson